HomeMy WebLinkAbout20073352.tiff HEARING CERTIFICATION
DOCKET NO. 2007-84
RE: SHOW CAUSE HEARING CONCERNING USE BY SPECIAL REVIEW PERMIT#1602 FOR
AN AGRICULTURAL SERVICE ESTABLISHMENT, INCLUDING A LIVESTOCK
CONFINEMENT OPERATION (DAIRY FOR A TOTAL OF 4,500 CATTLE, INCLUDING
MILKING COWS AND DRY COWS)IN THE A(AGRICULTURAL)ZONE DISTRICT-BRAD
AND SCOTT COCKROFTS DAIRY, LLC
A public hearing was conducted on October 24, 2007, at 10:00 a.m., with the following present:
Commissioner David E. Long, Chair
Commissioner William H. Jerke, Pro-Tern
Commissioner William F. Garcia
Commissioner Robert D. Masden
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Jennifer VanEgdom
County Attorney, Bruce Barker
Planning Department representative, Chris Gathman
Health Department representative, Laurie Exby
The following business was transacted:
I hereby certify that pursuant to a notice dated October 5, 2007, and duly published October 10,
2007, in the Fort Lupton Press, a Show Cause hearing was conducted to consider revocation of
Use by Special Review Permit #1602 for an Agricultural Service Establishment, including a
Livestock Confinement Operation (dairy for a total of 4,500 cattle, including milking cows and dry
cows) in the A(Agricultural)Zone District, issued to Brad and Scott Cockrofts Dairy, LLC. Bruce
Barker, County Attorney, made this a matter of record and stated the Board will conduct the
hearing and determine whether the applicant is in compliance the Conditions of Approval and
Development Standards required through Use by Special Review Permit#1602. He explained it
has been determined that a nuisance fly issue exists, the applicant must record the mylar plat
before expanded operations shall commence on the site, and the total number of cattle on the site
currently exceeds the amount allowed as a Use by Right.
Chris Gathman, Department of Planning Services, stated the applicant has addressed all of the
Conditions of Approval required prior to recording the plat, with the exception of Condition of
Approval #1.G, which he reviewed for the record. He explained the applicant's attorney has
provided evidence of correspondence between the applicant and the mineral owners since
May, 2007, and confirmed a draft copy of the Surface Use Agreement has been submitted. He
clarified representatives for the mineral owners are in attendance today, and reiterated the
agreement is not yet finalized. In response to Chair Long, Mr. Gathman confirmed the plat has
been submitted to the Department of Planning Services and is ready to record.
Laurie Exby, Department of Public Health and Environment, stated the Department has reviewed
the revised Management Plan for Nuisance Control,dated October,2007,which includes increased
detail concerning the control measures for flies and pests on the site, and the Department
recommends approval of the revised plan.
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Lee Sachnoff, Attorney, represented Aurora Organic Dairy, the operator of the High Plains Dairy
located on land owned by Brad and Scott Cockrofts Dairy, LLC. Mr. Sachnoff introduced Marc
Peperzak, CEO of Aurora Organic Dairy, Dan Placke, Director of Farm Operations, and Crystal
Gordon, Attorney, and expressed apology on behalf of Aurora Organic Dairy(AOD) regarding the
fly nuisance condition. He stated the fly nuisance condition was not a willful or intentional error,
and AOD remains committed to working with the neighbors to remedy the problem and ensure that
it does not happen again. He further stated recent cold weather has helped to remedy the
situation, and AOD wants to demonstrate that the problem has been taken seriously with revised
plans in place to ensure no future problems are experienced. He clarified the excessive nuisance
condition has received the full attention of AOD representatives, and he requested that the Board
not revoke Use by Special Review (USR) Permit #1602. Mr. Sachnoff stated Mr. Gathman has
testified that the Conditions of Approval of the Permit have been satisfied prior to the date to record
the plat, which is November 8, 2007. He stated the predominant and continuing issue at the site
is the fly nuisance condition, the practice of spreading slurry has been terminated, and slurry will
not be spread in the same manner in the future, which will alleviate future fly concerns. He further
stated AOD has worked to make amends with the neighbors and has spent over $63,000.00 for
spraying operations, fogging, insect traps, and direct reimbursement of costs incurred by the
neighbors, and he clarified AOD representatives did obtain consent from the neighbors to continue
fogging operations, as instructed by the Board at the previous hearing. He clarified AOD thought
consent had been received from the neighbors before the previous meeting, and he apologized for
any misunderstanding which may have occurred at the previous meeting. Mr. Sachnoff stated the
representatives have contacted the neighbors regarding powerwashing the residences, and many
of the neighbors have accepted the offer; however, some have declined.
Mr. Sachnoff stated AOD is committed to improve the communication process with the neighbors,
and the Nuisance Control Management Plan includes an invitation for neighbors to visit the dairy,
and he explained the plan will be continually monitored to ensure it remains effective. He stated
AOD has worked closely with County staff to ensure the plan will be effective to prevent a nuisance
fly condition from happening in the future, since the plan contains substantial amounts of additional
detail. He further stated AOD has requested County staff to complete inspections in Spring and
Summer, 2008, to ensure the Plan is effective, and to address concerns to prevent significant
problems. He clarified the goal of AOD is to prevent a condition of this magnitude from happening
again, and he reiterated his request that the Permit not be revoked. Mr. Sachnoff stated Weld
County is one of the top seventeen milk-producing counties within the nation, and he reiterated
AOD is committed to be a good corporate neighbor. He clarified AOD has operated since 1982,
and has retained a good compliance record for over 25 years due to the solid business practices
in place. He stated AOD is expanding and has encountered some growing pains; however, the
company values a good reputation.
Commissioner Rademacher indicated he believes the spreading of the effluent on the adjacent
pasture was a large cause of the fly nuisance condition; however, complaints were received from
neighbors on all sides of the dairy. In response to Commissioner Rademacher, Mr.Sachnoff stated
the fly abatement program has been revised as a part of the updated plan. Commissioner
Rademacher indicated the dairy itself has also contributed to the excessive fly problem.
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Commissioner Masden indicated that at the Probable Cause hearing, he instructed representatives
of AOD to contact the neighbors regarding setting up times for spraying activities to occur. In
response to Commissioner Masden, Mr. Sachnoff stated an AOD employee visited each neighbor
individually to obtain written consent to continue the spraying operations on each property.
Further responding to Commissioner Masden, Mr. Placke stated consent was received from the
neighbors to provide fogging operations utilizing an organic chemical; however, some of the
neighbors were not satisfied with the results. He clarified reimbursement was provided for
neighbors who elected to utilize conventional spray chemicals. He further stated aerial spraying
operations were completed on neighboring properties after the Probable Cause hearing. Further
responding to Commissioner Masden, Mr. Placke reiterated he received consent from the
neighbors to provide spraying operations; however, specific spraying times were not identified. Mr.
Sachnoff read a copy of the consent form into the record,and provided copies of the consent forms
signed by the neighbors, marked Exhibit I. Commissioner Masden reiterated his major concern at
the Probable Cause hearing was the scheduling of spraying operations, and he directed
representatives of AOD at that time to coordinate a schedule with the neighbors.
Mr. Placke stated he believes AOD does an excellent job working with neighbors; however, he
understands the situation regarding spreading of the effluent was mishandled. He stated the
excessive amount of flies will be prevented in the future through the revised plan, and he
understands the business of organic milk production involves prevention measures. He clarified
AOD has learned about fly control and he is confident the situation will be taken care of in the
future since professional consultants have been hired to provide direction and help. He reiterated
AOD is working to fix the problem, as well as working to prove that it is a good neighbor.
Mr. Peperzak expressed his apologies to the neighbors affected by the nuisance fly condition. He
stated he understands the problem should have never happened, and it is an embarrassment to
the company. He further stated the problem has his personal attention and he is ensuring the
necessary resources will be in place so that this problem will not happen again. He stated a
qualified entomologist has been contracted to provide help, and he promised the same mistakes
will not be made in the future. He further stated AOD has employed a good group of professional
dairy managers.
Scott Cockroft, applicant, stated he is one of the owners of the property and he believes AOD is
a superior dairy organization. He stated he understands AOD has experienced some growing
pains; however, the dairy is designed to handle the effluent produced on the site. He explained as
the composting activities begin, it will take time to get the basis set on the dairy. He further stated
the fly nuisance condition will go away, and he understands that other dairies within the area have
had excessive fly conditions this past year as well. Mr. Cockroft stated AOD has his full support,
and he is committed to being a good neighbor. He expressed his apologies for the nuisance fly
condition, and reiterated the Cockroft family has provided dairy operations within Weld County
since 1947. He requested the Board not revoke the permit for USR#1602.
Molly Sommerville-Buchanan, Attorney, stated she represents Anadarko Land Corporation and
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Anadarko E and P Company, LP, and explained Anadarko owns of all the mineral rights
underneath the Cockroft property. She stated a letter of objection, dated February 1, 2007, was
submitted to the Board before the hearing for USR #1602. She stated Anadarko has granted
several leases for the property, including leases with Petro-Canada Resources (USA), Inc., and
Noble Energy, Inc., and there are four permitted producing wells in the northwest quarter of
Section 11. She stated Anadarko owns the hard rock minerals underneath the property, and the
objection submitted was limited to oil and gas interests. She clarified Anadarko regularly works
with surface developers to reach agreements, and in February, 2007, representatives met with
Cody Hollingsworth of AGPROfessionals, LLC,who was a representative for the dairy at that time.
She stated drafts of the Surface Use Agreement were submitted in March and April, 2007, and a
response was received in July, 2007,which was deemed not acceptable to the oil companies. She
further stated a meeting to discuss the terms of the Surface Use Agreement was initiated; however,
the meeting was cancelled, and a meeting has not yet been successfully rescheduled. She
clarified most of the discussions have been initiated by the oil companies, and the applicant has
not made a good-faith effort to address the concerns of the oil companies.
Beau Fritz, Petro-Canada Resources (USA), Inc., concurred with the statements presented by
Ms. Sommerville-Buchanan, and stated the last conversation held with the applicant regarding the
Surface Use Agreement was following the hearing for USR#1602.
Wendy Rogers, surrounding property owner, stated she finds it difficult to discuss her serious
concerns with the Board, and she indicated she would like the dairy to disappear; however, her
husband does not agree with her. She stated the consent forms were signed by the neighbors;
however, no schedule was presented for dates and times of spraying activities. She clarified she
was out in the yard with her son one afternoon when a representative began fogging on the
property and she had to request the representative cease fogging since she was working in the
yard. She further stated she would have stayed indoors had she known fogging operations were
scheduled to take place on her property that day. She stated she feels trapped in an awkward
situation, and clarified if she did not allow spraying activities to occur, she would be giving the
message that she does not believe the flies are excessive. She further clarified her permission
for spraying activities to take place inadvertently gives permission for her property to be inundated
with chemicals. Ms. Rogers stated the smell of the chemical being utilized causes nausea, and
contains a very pungent odor, which is in addition to the annoyance of the excessive flies. She
stated the dairy is too big to manage naturally and the company cannot keep enough dedicated
employees to manage the necessary operations properly. She clarified the dairy is currently
milking more cows than what is allowed as a Use by Right and the dairy produces more manure
than the facility can properly handle. She stated she does not believe AOD has the ability to safely
manage the dairy,which makes the nuisance condition become a serious health issue as well. She
further stated AOD staff will have to work year-round to dedicate efforts toward pest control, which
she does not believe will happen since the company is growing too quickly. Ms. Rogers stated she
understands that AOD is asking for a second chance; however, she does not believe the Board
should grant a second chance since she does not have a second chance to get her summer back.
She stated she is not able to recoup the loss of her property value, and she believes her property
has been rendered un-sellable. She clarified the only way to guarantee the nuisance fly condition
will not happen again is to revoke the USR permit. She expressed her appreciation for the revised
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plan provided to her; however,she received the revised plan today,therefore,she has not had time
to review it. In response to Commissioner Rademacher, Ms. Rogers indicated she has lived at her
current location for over fourteen years, and the amount of flies on her property has never been
at a nuisance level before this past year. She indicated her property on the provided map and
confirmed that her property is located directly across the road from where the effluent was spread
on the adjacent pasture land. She stated even with the recent cooler temperatures, there is still
a large amount of flies around her property.
Stan Rogers,surrounding property owner,expressed his appreciation for being able to address the
Board with his concerns. He stated AOD hand-delivered a revised Management Plan for Nuisance
Control to his residence within the previous week, and he did review the plan. He stated it is his
understanding that the dairy may only operate with 3,200 head of cattle as a Use by Right, and the
expanded amount of 4,500 head of cattle was approved through USR #1602. Mr. Gathman
clarified 2,300 head of cattle is allowed as a Use by Right for the 500 acres encompassed within
the USR boundary; however, the applicant owns an additional adjacent parcel, therefore, the
applicant is allowed 3,200 head of cattle as a Use by Right. Mr. Rogers stated AOD has attempted
to mitigate any further nuisance issues on the site; however,the spraying activities have done little
to control the fly population. He clarified the product being utilized, containing five percent of active
ingredient,does not compare to the commercially available products containing at least ten percent
of active ingredient. He stated the provided solution has not been working; however, the seasonal
change of cooler weather has finally helped to decrease the fly population. He stated his wife spent
a lot of time researching the ongoing problems, and he referenced the Field Guide from the
National Resources Conservation Service (NRCS), which states a dairy cow will produce
15.24 tons of manure annually. He clarified the AOD facility will produce 48,768 tons of manure
annually with 3,200 head on the site. He referenced another article which stated one pound of
manure can contain up to 1,500 larvae which will hatch into flies. Mr. Rogers stated he was not
able to discern any change in application methods in the first revised edition of the Plan; however,
the second revised edition raises more concerns regarding the handling of waste on the site. He
stated AOD is trying to eliminate the volume of manure which is produced at the site, and the dairy
intends to compost approximately 20 to 30 percent of the manure on the site. He clarified the
compost field is still non-functioning, therefore, the dairy is still trying to handle approximately 70
to 80 percent of the remaining raw manure by delivering it to neighboring farms. He further stated
AOD intends to monitor the moisture level of the manure; however, he in unsure what percentage
level will be maintained. He clarified he still believes the best application of the liquid effluent would
be to directly incorporate it into the soil within three days of application. He stated the revised plan
he received today indicates some effluent may still be applied to the land immediately adjacent to
his property.
Mr. Rogers indicated it was brought to his attention that AOD has still not obtained a Confined
Animal Feeding Operation(CAFO)Permit,therefore, no Nutrient Management Plan has been filed.
He stated the crop of choice utilized by AOD for grazing is triticale, and he has concerns regarding
the application levels, which could lead to excess nitrogen levels. He stated Randy Checketts,
General Manager of the dairy, delivered an agreement for powerwashing residences last week,
which stated AOD is willing to wash one-third of the buildings on his property and will not be held
liable for paint damage. He indicated the agreement was not acceptable to him, since chemical
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has been applied to all of the buildings located on his property. He indicated he is confident the
Board will take the appropriate action regarding the matter, and reiterated AOD has exceeded the
number of animal units allowed on the property by up to 800 head. He suggested the Board
mandate a decrease in the number of animal units to a manageable amount for at least one year,
which will determine whether AOD is able to manage operations with Best Management Practices
in place. In response to Commissioner Jerke, Mr. Rogers clarified the powerwashing agreement
proposed by AOD would only provide for powerwashing of the residence and disconnected garage,
and the barn and shed next to the garage will not be washed. He stated his residence contains
wood siding and he believes the powerwashing will damage the paint and siding. Responding to
Mr. Rogers, Mr. Gathman indicated the determination of animal units in Weld County is not
distinguished by weight or class, therefore, an animal of any size would be considered as one unit.
Jimmie Wolfrum, surrounding property owner, stated he has heard the plan presented by AOD to
address the concerns of the neighbors at the previous meetings he has attended; however, the
dairy has not followed through. He stated the dairy started out too large to manage correctly, and
the size has not been expanded through managed steps. He further stated the company brags
about the jobs it has created; however, it has been admitted that the positions cannot be filled. He
clarified he thinks very highly of Mr. Checketts, the General Manager, and stated he understands
Mr. Checketts is trying to manage the dairy; however, he is not sure if Mr. Checketts has the
necessary experience to equal the sincere effort. He further stated Mr. Checketts does not have
the required support from the executive level of the company. He stated at every meeting he has
attended, new people have been present to act as representatives for AOD; however,the manager
has not been present at any of the meetings. Mr. Wolfrum stated he understands a dairy will
always be located on the property and that all of the neighbors will have to figure out a way to get
along with the dairy. He stated he feels fortunate that the dairy is an organic dairy, he understands
that AOD has tried to build a very good facility, and he is thankful that the operation is not
considered to be a feedlot dairy. He stated many changes are necessary and he questioned the
claims of the company that the same problem will not occur next year. In response to
Commissioner Rademacher, Mr. Wolfrum indicated the placement of his property on the map
provided, and stated he purchased his property in 1998 and moved into the residence in 2001. He
further stated the fly condition has been fairly significant in previous years; however, it has never
been as excessive as it was this past year. Responding to Commissioner Jerke, Mr. Wolfrum
stated he did give consent for spraying operations on his property; however, he will not allow for
spraying next year. He further stated he believes the spraying had little effect; however, he does
not know how much more excessive the flies would have been if the spraying had not been taking
place. He indicated Commissioner Masden did request that AOD coordinate times for spraying
activities at the Probable Cause hearing; however, he acknowledged it is hard for the
representatives to coordinate specific spray times. He reiterated the fly condition has been so
prevalent that he authorized the company to do whatever is necessary to get rid of the flies.
Duane Mix, surrounding property owner, indicated the placement of his property on the provided
map, and stated he signed the consent forms presented to him. He clarified he was informed
spraying activities would occur everyday; however, fogging occurred only twice last week. He
stated he believes the chemical is working; however, the cold weather is proving to be even more
effective. He stated the flies are trying to move inside his residence now that the cold weather has
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come,and when he asked if spraying inside his residence could be compensated, he was not given
an answer. He clarified he has not received any information about the type of chemical being
utilized, or about the hazards of the chemicals. He further stated his residence is directly across
from the entrance to the dairy, and one year ago, his mailbox was knocked over by company
employees, and the situation has never been rectified. He stated manure has been spilled in front
of his residence, which forced his children to step through it when they stepped off of the school
bus, and a representative of the company has never discussed the situation with him. Mr. Mix
indicated Mr. Checketts previously indicated that parasitic wasps were utilized too late in the
season; however, it has been discovered that the wasps were never even utilized. He stated
Mr. Checketts is working on a solution so that company trucks are not parked directly in front of his
bedroom window, and he is concerned that the company is conducting conversations through
written consents. He further expressed his concerns regarding dust on County Road 59,especially
utilizing water on the road for dust control during colder temperatures. He stated if the road
becomes icy due to the placement of water on the road, he is concerned that a semi-truck could
slide into his property, and possibly into his residence. In response to Commissioner Garcia, Mr.
Mix clarified the trucks are not parking on the road right-of-way; however, the trucks are parked in
very close proximity to his residence.
Dave Blomquist,surrounding property owner,expressed his concerns regarding the use of parasitic
wasps and fly control measures. He stated he is able to identify when the liquid effluent is being
spread, since the flushing of the parlor causes a mist to settle on his property; however, AOD does
do a good job of keeping the ditches mowed and well-maintained. He stated he is not sure if the
spraying is helping the situation; however, he confirmed it produces an odor which makes him
nauseous and gives him stomachaches. In response to Commissioner Masden, Mr. Blomquist
indicated he provided consent for the powerwashing of his residence, and he indicated the
placement of his residence, and his rental property, on the map provided.
Tom Haren,AGPROfessionals, LLC, stated he was present at the oil and gas meeting referenced
by Ms. Sommerville-Buchanan, and a copy of the plat and plans were presented to the three oil
companies at that meeting. He stated the large field is irrigated by a center pivot; however, he
understands the oil and gas issues on the site are important. He further stated the applicant is
required to provide evidence of an agreement, and certified mail receipts of the continued
correspondence has been provided,which meets the intent of the Condition of Approval. He stated
the issue of obtaining consent for the spraying activities has been tough, and he clarified he has
met personally with almost every neighbor of the dairy. He stated he advised officials of AOD that
he did not want to simply provide legal paperwork to the neighbors, rather, he desired that the
spraying operations take place to get the fly problem taken care of. He reiterated the neighbors
requested that AOD do whatever was necessary to take care of the situation, and representatives
have obtained consent to provide spraying operations; however, coordinating the aerial spraying
has not been easy. He clarified there have been many conversations between the neighbors and
representatives of AOD regarding spraying.
Mr. Haren stated the CAFO permit application has been submitted, as required as a Condition of
Approval; however, the CAFO permit approval process has been suspended for several months,
and permits will not be issued until Spring, 2008. He explained there has been a discrepancy
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between state and federal law, and the state cannot be more stringent than federal law. He
clarified the applicant has met the condition to the furthest extent possible at this time. He stated
the fly habitat has not developed from the process of spraying stormwater from the lagoons. He
further stated AOD has taken every measure possible to reduce or mitigate the fly problem;
however,the solution was provided too late following the occurrence of the problem. He stated the
chemical utilized has been effective, and he confirmed no wet manure, as excreted,will be applied
to fields in the future. He stated the manure will be composted and land applied in the future as
dry manure. In response to Commissioner Masden, Mr. Haren stated a majority of the control
measures within the various plans referenced within the USR permit were not enacted in regards
to the fly condition, and the facility is not currently operating through an approved CAFO permit.
He stated the dairy is operating through more stringent standards since the dairy must operate as
a no-discharge facility until the CAFO permit is approved. He stated the management plans have
been enacted and he admitted the Nuisance Management Control Plan measures were not
followed through in regards to fly control. Further responding to Commissioner Masden, Mr. Haren
stated he believes part of the problem is that the facility has very little irrigated pasture land. He
indicated the pasture is mowed regularly and grazed; however,the pasture may act as a fly habitat.
He stated the chemical treatment options are limited,and he acknowledged that synthetic chemical
treatment could be much stronger. He clarified the dairy, due to organic standards, may not
purchase non-organic chemicals; however, the company supports funding a program for
reimbursement for spraying activities outside of the facility. Mr. Sachnoff clarified AOD does
operate other organic dairies within Colorado and other states, including the facility located near
the Town of Platteville, and this is the first time AOD has ever experienced a fly condition of any
magnitude at any of its facilities.
Chair Long issued a recess for the purpose of a lunch break.
Upon reconvening, Mr. Cockroft addressed the issue of the oil and gas leases,and stated the initial
letter he received proposed that royalties and the monies from associated damages be collected
by the oil companies, and that he would be required to pay for the directional drilling. He clarified
there are several oil wells located on the property, and he has previously worked with all the
companies to fulfill their needs without asking for any unrealistic expectations; however, he does
receive revenues for damages. He clarified several meetings have been proposed and set up,
which have been cancelled by the representatives of Anadarko. He stated he is out of town quite
frequently on business relating to the dairy he operates, and he confirmed that he is not opposed
to meeting with the oil and gas companies. He further stated he has no objections to the resources
beneath his property being pulled by the companies; however, he would like to come up with a
reasonable solution which solves the needs of both parties.
Mr. Cockroft likened the process of fighting flies to the process of tending to a garden, and stated
the fly problem cannot be solved after it has already begun; rather, effectively fighting flies is a
nurtured process. He stated agriculture is a huge part of Weld County, and he has historically
applied 20 tons of manure per acre, through piling manure on the ends of fields in order to spread
it. He further stated he has typically slung wet manure out of free stalls, and he is encouraged that
the neighbors have admitted there has not been a significant fly problem on the property in
previous years. He clarified as the Best Management Practices are utilized, the problem will be
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prevented next year. He reiterated the fly condition will not occur next year, and the berms laid out
for the compost area will ensure success. Chair Long requested that Mr. Cockroft address the
safeguards and the monitoring system in place to rectify the excessive fly situation. Mr. Cockroft
explained when a nest or hatch of larvae is disturbed, it explodes,which kills the larvae. He further
explained the straw utilized for bedding is laid out in compost lines, and wet slurry is placed on top,
and then the composting is subject to a high level of heat,which kills the bacteria. He stated if wet
slurry is placed on soil and immediately disced, it will kill the smell and the habitat for the flies. He
explained stirring the compost will break up the habitat, and the organic material will not contain
flies. He further stated flies that migrate to other properties will inhabit landscaping and water
puddles and will multiply rapidly, and he indicated he is willing to help AOD combat future fly issues.
In response to Chair Long, Mr.Sachnoff stated AOD has historically attracted good employees due
to the generous benefits provided. He stated several different representatives have attended the
various hearings due to scheduling issues, and also to demonstrate that the required expertise is
available to combat the fly condition. He further stated the company has taken steps to ensure that
the condition will not occur again, and the new plan presented will be sufficient to move forward in
the future. He stated the officials of AOD have focused on this problem due to the elevated
concern presented by the neighbors, and he reiterated AOD has been successful in managing fly
conditions at the other dairies it operates. He clarified this has been an isolated incident and
training will focus on ensuring the incident does not happen again. Mr. Sachnoff stated the dairy
is fully staffed,and he invited staff to provide regular monitoring and frequent inspections to ensure
the dairy stays true to its commitment. He stated as the issues are identified in advance, they can
be addressed and corrected. He reiterated the company's desire to engage with the neighbors and
to keep the lines of communication open. Mr. Sachnoff stated AOD is aiming to be responsive and
accommodating, and did obtain written consent for the spraying activities, and he apologized for
any misunderstanding. He stated no aerial spraying has been completed since the Probable
Cause hearing, only fogging operations on the property have occurred. He clarified the
representative did leave Ms. Rogers property when requested, and AOD is sincerely trying not to
impose on the neighbors.
Commissioner Masden indicated he was very specific at the Probable Cause meeting when he
requested that AOD coordinate times with the neighbors for spraying and fogging activities, and
he is disappointed that it did not happen. He stated he understands the need for the written
consent; however, the neighbors need to be informed of specific times when spraying will take
place. Mr. Sachnoff acknowledged that the representatives were not specific with times; however,
the neighbors authorized whether spraying in the morning of afternoon was preferred. He stated
the representatives were trying to be pro-active in managing the crisis, and he apologized for the
inadvertent mis-communication.
Mr. Sachnoff reiterated representatives have done everything possible to address the situation this
year, and he believes the plans presented will ensure the problem does not happen again next
year. He further reiterated AOD is working to keep the lines of communication open, and has
personally apologized for the inconvenience caused.
Commissioner Garcia commented the revised plan contains a number of generalities, and he
requested the proposed practices which differ from past practices be specifically addressed. Mr.
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Sachnoff stated A-1 Organics has been hired to begin an aggressive composting plan, and the
management plan will be closely followed. He stated AOD now employs an experienced farm
team, and the company is committed to ensure the proper procedures are followed.
In response to Commissioner Garcia, Mr. Cockroft explained the process of collecting effluent from
the free stall barns, the texture and moisture of the manure, and the process of drying the manure
from the inside out. He clarified once the facility realized that the plan for handling manure was not
working correctly, the manure was evacuated to other farms. He explained the differences in
handling manure at various altitudes and climate locations, and he reiterated a different process
will be utilized at the facility next season. He stated the stirring and heat will kill the larvae within
the manure, and any manure spread will be disced into the soil immediately. Responding to
Commissioner Rademacher, Mr. Sachnoff indicated 20 percent of the manure will be composted
on the site, and up to 80 percent will be delivered to neighboring properties and additional pasture.
Commissioner Rademacher indicated he understands that is a very common practice, and he
understands it is hard to incorporate wet manure into pasture. Mr. Sachnoff stated the spreading
of effluent is addressed within the monitoring plan, and the composting procedures will help to
resolve current issues. Mr. Cockroft clarified the wet manure will not be placed on top of open
pasture ground in the future.
Mr. Haren clarified the created management plans have proven effective at other facilities, and
manure at an organic facility is a good thing. He stated all of the manure will be composted, or
managed and solidified to be hauled from the site. He further stated the dairy is well designed,well
managed, and kept very clean. He explained vacuum technology is being utilized instead of
flushing, and the material cannot be composted without drying the material. He gave a brief
explanation of the situation which caused the composting problems, and assured the Board that
specifics have been included in the revised plans,which he discussed in detail. He reiterated AOD
is very knowledgeable about dairy operations and the appropriate help has been hired to address
the current concerns. He explained if the plan is adhered to, it will work, and he reiterated the
changes which have been made within the revised plan. He stated AOD has apologized profusely
for creating a bad situation, and it is requesting a second chance to prove it is a superior dairy
organization.
Mr. Sachnoff stated the primary reason for the nuisance fly condition has been identified, and he
assured the Board the spreading of wet manure will not happen again. He explained the Best
Management Practices have been updated, and County staff has deemed the plan acceptable;
therefore, the company is committed to moving forward. In response to Commissioner Masden,
Mr. Sachnoff stated consent forms were presented for permission to powerwash residences, of
which most of the neighbors approved, and AOD is committed to working with the neighbors to
address concerns.
Responding to Chair Long, Ms. Exby reiterated the Department of Public Health and Environment
has received the revised plan, and does recommend approval of the written plan. In response to
Commissioner Masden, Ms. Exby stated the Department will be able to determine if the plan is
working if there are no complaints received about an excessive amount of flies at the site next year.
She reiterated the flies from this season must be eliminated by the cold weather, and by early
Spring, 2008, staff can determine whether the revised plan has worked. Responding to
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Commissioner Rademacher, Mr. Barker indicated the dust abatement issues from the previous
board meeting are not a part of the noticed hearing today; therefore, he recommended discussion
of those issues be held after the Show Cause hearing is completed.
In response to Commissioner Jerke, Mr. Barker reviewed Section 23-2-270 of the Weld County
Code for the record, and he reviewed Condition of Approval #1.G of USR#1602 for the record,
regarding the oil and gas activities on the site. He clarified Mr. Haren has indicated evidence of
the certified mailings to the oil and gas companies, and the Board heard evidence today that the
applicant has attempted to set up meetings, which have been cancelled. He stated the applicant
has made an effort, and staff makes the determination to decide if the plat may be recorded.
Mr. Barker reviewed Development Standards#16 and#19 of USR#1602 for the record, regarding
fly abatement at the facility, and stated when the situation becomes worse than expected, the
situation must be addressed by the applicant in association with the Department of Public Health
and Environment. He further stated the Resolution for USR#1602 allows for 4,500 head of cattle
to be located on the site.
Mr. Barker clarified the Board may dismiss the hearing today, and not revoke the USR permit, or
the Board may revoke the USR permit upon the determination that the specified Conditions of
Approval and Development Standards have not been met. He stated the Board also has the option
of continuing the Show Cause Hearing to a further date, to allow for review of the implemented
revised plans and to hear testimony regarding the oil and gas issue. He stated Section 2-4-50.O
of the Weld County Code provides for the option for the Board to suspend the permit for a period
of time, and in lieu of suspension, the applicant may agree to a cash payment. He clarified the
notice for today's hearing only mentioned revocation, not suspension, and he does not believe
suspension is a feasible option for dairy operations. He reviewed Section 2-4-50.O for the record.
In response to Commissioner Jerke, Mr. Barker explained if a USR permit is vacated or revoked,
the property reverts back to the original Use by Right, therefore, for this property, the animal units
on the property must comply with the number of units allowed as a Use by Right. He stated the
regulations required through the USR permit will also be removed through revocation. Further
responding to Commissioner Jerke, Mr. Barker indicated environmental concerns on the property,
including runoff concerns, or a fly nuisance concern, will still be addressed by the Department of
Public Health and Environment, even in the absence of a CAFO permit.
Responding to Commissioner Garcia, Mr. Barker stated the acceptance of the revised plan will not
constitute as an amendment to the USR permit, and the plan will be incorporated into the file as
a replacement plan. Further responding to Commissioner Garcia, Mr. Barker stated the applicant
may volunteer to restrict the number of animal units on the property, similar to an agreement or
stipulation for the purpose of resolving the nuisance condition. In response to CommissionerJerke,
Mr. Barker indicated if the USR permit is revoked, the applicant may reapply within a period of one
year; however, the Board has never encountered a situation when an applicant has reapplied for
a USR permit after revocation. He further stated a substantial change is defined as a factor or
information that was not known at the time of the application, which has significantly altered the
application request.
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Commissioner Jerke stated he believes there needs to be some level of punishment for this
situation since the applicant has been in operation with significant problems such as a fly nuisance
condition, oil and gas operation disagreements, tainted community relations, and adopted plans
which were not followed. He stated if the permit is revoked, the applicant may still operate as a
Use by Right with a reduced number of animal units, which will allow the opportunity to continue
business operations and address concerns. He further stated he supports revocation of the permit,
allowing the applicant to continue operations for a period of time to prove a good track record. He
stated dairy operations are a unique situation since a dairy is allowed as a Use by Right, therefore,
the applicant should enact the new plan, and the new plan may then serve as the basis of a
substantial change for re-application of a USR permit in the future.
Commissioner Rademacher indicated dismissal of the matter is not an option; however, he does
not support revocation of the permit. He stated he prefers the Show Cause hearing to be
continued; however, if the applicant does not bring the fly nuisance condition under control, the
neighbors will be subjected to another miserable summer. He further stated he believes the fly
nuisance condition has been a very isolated incident, and this has been the first Show Cause
hearing for a dairy in many years. He stated he has exposure with AOD in previous situations, and
he believes the feedlot at the Platteville facility was more of a nuisance than before AOD began
dairy operations. He further stated he is concerned with the communication between AOD and the
neighbors, and he would be personally offended if a plane dumping pesticides were to fly over his
property unannounced.
Commissioner Masden stated he supports a continuation of the Show Cause hearing, and he
believes the colder weather throughout the winter season will help to control the flies, allowing for
implementation of the revised plan. He stated the hearing should be continued to Summer, 2008;
however, he supports a reduction in the number of animal units, if agreed upon by the applicant.
He further stated the applicant has not properly dealt with several of the issues, and he suggested
a third party be utilized to continue spraying operations for the neighboring properties. In response
to Chair Long, Mr. Barker stated a continuance motion with a reduction in animal units could be
made; however, the applicant must consent to the reduction in animal units.
Commissioner Garcia stated he shared his disgust regarding the nuisance condition at the
Probable Cause hearing, especially concerning the pictures of evidence of flies. He stated he was
initially excited about the dairy; however, he is disappointed that the dairy has taken a wrong turn
from the presented plan at the USR hearing. He further stated after hearing the statements of the
neighbors, he does believe that punishment is necessary; however, he believes revocation of the
permit would not be the best solution. He clarified if the permit is revoked, the applicant will still be
allowed to operate the dairy; however, he believes more management control will be overseen by
the County if the permit is not revoked. He stated he hopes AOD will be able to provide a
redemption story and that company officials will continue to work to resolve the issues. He
indicated he concurred with Commissioner Masden, preferring to see the hearing continued, with
a reduction in animal units on the property.
Chair Long stated he has concerns with reducing the number of animal units on the property
because he understands the number of cattle on the site is based upon a financial model for Best
Management Practices. He stated the first priority for the applicant is to address and resolve the
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concerns of the neighbors, which may include extra effort and finances to provide a favorable
resolution. He further stated he does not support revocation of the permit since the County will lose
the ability to provide good oversight and direct connection for monitoring, nor does he support
dismissal of the matter, due to the gravity of the situation. He stated he understands a huge
mistake occurred, which should have been caught through a system of checks and balances, and
it is an unfortunate situation. He further stated he is embarrassed as a Board member, since he
was given confidence in the plans at the USR hearing, which did not work properly. He indicated
he understands this has been an isolated incident, and he hopes the situation can be remedied
through adequate monitoring.
Commissioner Rademacher requested the applicant address whether it would be financially
feasible to reduce the number of animal units on the site. In response to Chair Long, Mr. Gathman
indicated 2,364 animal units are allowed on the site as a Use by Right. Ms. Exby indicated if the
permit is revoked, the Colorado Revised Statutes regarding nuisances will provide mechanisms to
address public health issues occurring on the site. Responding to Commissioner Jerke,
Mr. Gathman indicated since the applicant owns an additional adjacent parcel, the total number of
animal units allowed as a Use by Right is approximately 3,200. Chair Long clarified the adjacent
property is not a part of the boundaries for the USR permit; however, it is contiguous ownership,
therefore, the Use by Right for animal units does increase.
In response to Chair Long, Mr. Sachnoff requested a recess in order to discuss the possibility of
reducing the number of animal units at the dairy.
Upon reconvening, Mr. Sachnoff stated reducing the herd size to approximately 3,200 animal units
for one year will cost the dairy millions of dollars, which is an excessive punishment. He stated the
dairy's financial model is designed for 4,500 cattle and causing the financial model to fall apart will
not solve the fly nuisance condition, which is the primary concern. He requested the Board to
continue the hearing until June, 2008, and he stated AOD is willing to set aside an amount of
$250,000.00 to be utilized for any further fly abatement measures and expenses which have
previously been incurred, and the balance of the fund may then be distributed among the affected
neighbors. Mr. Barker recommended the amount be placed in an escrow account,which the Board
could draw upon if certain conditions were met. Mr. Sachnoff clarified AOD has already incurred
over$63,000.00 in expenses,and he reiterated the aggregate sum of$250,000.00 will be set aside
to be utilized for expenses already incurred and any additional expenses incurred by the neighbors,
with the remaining funds to be paid to the neighbors as compensation. Mr. Barker stated he does
not believe the provision of the funds serves as a punishment since the representatives of AOD
have previously stated the intent to provide compensation to the neighbors. He stated a better
approach is to require the representatives of AOD to provide evidence of how the well-being of the
neighbors has been compensated at a future hearing. He stated it is not necessary for the Board
to hold the funds to be utilized, and he recommended the Board not be required to make a
determination of the utilization of the funds. He further stated if the number of animal units remains
the same on the property, it will be easier to make a direct comparison at a future date, and if the
number of animal units is decreased, the comparison will be skewed.
Mr. Sachnoff stated he understands the need for an effective punishment; however, a reduction
in the number of animal units will create an excessive punishment to the financial model of the
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dairy. Mr. Peperzak indicated the AOD facility located near the Town of Platteville is currently
being downsized from 4,000 to 1,000 animal units, and there is no room to place displaced animal
units from the High Plains facility. He stated the mistake made is not deserving of a multi-million
dollar fine; however, he understands that the company should be punished, and he believes the
funds should be directed to the neighbors who have been affected. He stated the number of cattle
on the site will not affect the fly condition, and he supports a continuance of the matter to ensure
the Best Management Practices are followed.
Chair Long stated he understands the facility was built for a specific capacity in order to make the
financial model feasible, and it will be a great harm to require the number of cattle to be reduced.
He clarified he did not use the term punishment, and he stated AOD needs to reconcile with the
neighbors to ensure their concerns are addressed. He requested AOD utilize public relation skills
to meet the needs of the neighbors so that no negative testimony is provided at a future hearing.
He stated he does not support a reduction in the number of animal units so that a fair comparison
may be made at a future hearing. He further stated all of the neighbors have been able to
differentiate between normal fly conditions and the nuisance condition created this past year.
Commissioner Masden stated a dairy management problem created the nuisance condition which
affected the neighbors, and the Board was notified of the situation as a regulator. He stated there
are over 90 dairies located within Weld County, and this is the first Probable Cause hearing
regarding a dairy that he has been involved with. He clarified no one in attendance at today's
hearing is enjoying this process, and he acknowledged that the Board is trying to find sufficient
evidence as to why the USR permit should not be revoked. He stated the Board is trying to work
with the applicant to provide a temporary reduction in the number of animal units, which may not
fit the financial model; however, AOD created the situation and the Board is trying to provide fair
treatment to all parties involved. He stated the Board does not desire to act as a banker for AOD
and reiterated AOD must fix the situation it has created. He indicated he expects to hear how the
revised plan has been implemented and proof that the plan has effectively mitigated any nuisance
conditions. He reiterated he understands a financial hardship will be created for AOD; however,
the situation has already created a hardship for the neighbors and County staff.
Ms. Exby indicated if the Board desires to continue the Show Cause hearing,a hearing date in July
or August, 2008, would be appropriate, since the fly nuisance condition on the property was not
reported until July of this year.
Commissioner Rademacher concurred with Mr. Barker and stated the animal units should not be
reduced so that a fair comparison can be made. He stated the officials of AOD are free to create
a reimbursement account if they desire to; however, the Board should not act as a banker for
reimbursement reasons. He stated he supports a continuation of the matter.
Commissioner Jerke indicated he is still in favor of immediate revocation. He clarified the applicant
will still be allowed to operate with approximately 3,200 animal units,and the Platteville dairy facility
may be utilized to hold additional cattle. He stated many bridges with neighbors have been burned,
as well as bridges with Board members and County staff. He further stated if the matter is
continued, it needs to be continued to a date late in the summer, preferably in the month of August,
and the specifics regarding restitution to the neighbors should take place on a private party basis.
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He indicated several large feedlots and dairies have previously bought property from surrounding
property owners, which creates an additional buffer to the facility. He stated the neighbors came
to the Board to seek relief, and the neighbors have been put off, and it is not acceptable to put
them off again. He stated the winter weather will kill off the flies; however, AOD needs to focus on
improving its good neighbor policies.
Commissioner Garcia stated he previously mentioned that the Board sits as a quasi-judicial body,
and the level of contempt he has heard today reminds him of his prior profession as an attorney.
He stated the language referenced today that this matter is a joke is quite offensive to him. He
stated the Board is not in a position to exact punishment, and he concurs with the recommendation
of Commissioner Rademacher. He stated the officials of AOD have a large amount of work to
complete to be able to mend the bridges with the neighbors.
Upon conferring with Ms. VanEgdom, Commissioner Rademacher moved to continue the matter
to August 13, 2008,at 10:00 a.m. The motion was seconded by Commissioner Garcia. Mr. Barker
recommended the motion include a condition that resolution of the oil and gas issues be completed
by January 1, 2008, or evidence be provided which indicates a good faith effort to do so.
Commissioner Rademacher amended his motion to include the recommendation of Mr. Barker,and
Commissioner Garcia concurred. Upon request for a roll call vote, the motion carried three to two,
with Commissioners Jerke and Masden opposed.
Chair Long indicated the expectations of the Board have been set high, and he expects the
representatives of AOD to provide adequate follow through. There being no further discussion,the
hearing was completed at 3:00 p.m.
This Certification was approved on the 29th day of October, 2007.
APPROVED:
! �BOARD OF COUNTY SIGNERS
WELD COUNTY, COLORADO
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Weld County Clerk to the BoaFtf' nge
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William H. Jerke, m
De ty Cliito the Board
Wil m F. Garcia
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Robert D. Masden 9
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ouglas ademacher
2007-3352
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